Thaler is unlikely to get the “humanity” of the creative machine he wants from the Copyright Office. Nor should he — fundamentally redefine our notion of what we mean to be human, and that shouldn’t fall within the mandate of the Copyright Registry, an unelected and relatively unknown person appointed by the Librarian of Congress of government officials. But Taylor and other generative artists deserve recognition and control, at least being able to register as authors of these works. As more and more artists turn to generative code and other algorithmic tools to make their work, we should consider extending protection to products of these methods.
To be sure, many artists in the generative art movement don’t care whether their work qualifies for copyright protection. However. Erick Calderon, founder of the NFT platform, said: “Many people from programming, coding or engineering backgrounds who are involved in the cryptocurrency space share this open-source spirit.” art blocksBut Calderon said he’s seen artists start thinking about protecting their image, “The first time someone takes advantage of your work, you feel a little violated and you just sit there, ‘Oh man, could have been happy they asked me.
Many believe that the unauthorized use of an artist’s work for commercial purposes, and involves large sums of money, is unfair to many. Calderon, himself an artist, sees unauthorized appropriation as an economic and political issue. “If you open a shawarma restaurant and use Chromie curve As a logo,” he said, referring to his iconic generative project. “It wasn’t necessarily my artistic intention behind Squiggles. It is also important for Calderon to be able to prevent his work from being used for hate speech. Without copyright, when artists see their work being used to adorn the flags of organizations they consider ideologically objectionable their recourse will be limited when they hear their music used as the soundtrack to a campaign rally of a candidate they despise. Generative artists should also be able to take advantage of these protections. Their work may be computer-generated Yes, but not all generic – the best of them exhibit a unique style that is easily associated with the artist by those in the know.
There are other, less practical reasons for giving copyright to generative artists. We make art for all sorts of reasons, some trivial, some profound, some rational, some very irrational. Allowing artists to profit from their work through copyright is not because there is no art without cash incentives, but because money is the imperfect language the law uses to shape and communicate values. We want—or should want—to live in a society that values art and artists. Art that challenges our understanding of what it means to be human in fundamental, disturbing ways is exactly the kind of art our systems should endorse, or encourage if you will.
There is precedent that might be useful here. We have directors or their studios register their films with the Copyright Office. Even if a film brings together the work of many different contributors – including machines and sometimes animals – we are happy to assign copyright to the “mastermind” behind the film, the director who “oversees the entire production,” as one case suggests say it. There are huge important differences between what film directors and generative coders do, but our model for assigning copyright to the former can provide a useful template for properly evaluating what the latter do.
Some may argue that extending copyright protection to generative art will hinder creative production because it makes it too “easy” to create copyrighted works. A copyright troll with the right coding skills can generate a thousand images in seconds and use them as lawsuit bait. But new technology always presents opportunities for trolls, and our vigilance against bad actors exploiting the system should not deter our efforts to design a copyright system that truly complies with its constitutional mandate.
Taylor’s views may seem extreme, but philosophers, environmentalists, and artists are increasingly adopting post-human perspectives to understand and navigate the crises of our time. Laws, including copyright law, should help facilitate these important investigations, not hinder them.